Home Human Rights Economic Social Cultural Rights The Danish Law on Seizing Asylum Seekers’ Assets

9 Responses

  1. Jakob Cornides Jakob Cornides

    You sure might say that depriving an asylum seekers of any assets they might have brought along is un-generous. But a “human rights violation”? That seems quite a far shot.

    I’m not even sure whether you can appropriately speak of confiscation. By that term I would understand the taking of a person’s property without giving it anything (of equivalent value) in return. So when Nazi Germany seized the property of Jews, or Communist governments in the Soviet bloc seized the property of aristocrats, industrialists, and the bourgeoisie, that was a clear case of confiscation. So was the confiscation of the property of ethnic in Czechoslovakia, Poland, and other countries after WWII.

    But the argument of the Danish government is that they are not expropriating asylum seekers, but rather asking them to pay for the material benefits (housing, food, health care, etc.) they are receiving. Un-generous maybe, but clearly not an expropriation under any correct understanding of the relevant human rights provisions.

    You might also look at this issue from a more general angle: should the welfare state not focus on helping only those who really need it? If so, does this not imply excluding from social benefits all those who can afford to pay for themselves?

    In a country like Germany, people will be sustained by the state under the “Hartz IV” scheme only if they have no assets they could live on, or after those assets have been spent: you can’t live off public welfare and at the same time own a huge bank account. In the same vein, children are in principle expected to spend their assets to pay for necessary healthcare for their elderly parents – even if that means a sacrifice for them. It would overstretch the principle of solidarity to make the rest of society pay when in fact the family does dispose of the necessary assets to sustain itself. The wider society can be asked to intervene only where solidarity within the family is not sufficient to solve the problem.

    So, is your criticism of the Danish (Swiss, German) law not based on a somewhat overstretched idea of solidarity?

    In any case, the debate seems rather theorethical. Most asylum seekers do not bring a lot of assets, if any. This measure will not significantly reduce the cost of accomodating refugees; it rather appears to be a concession to public opinion.

  2. Juan M. Amaya-Castro

    I find it hard to believe that Danish citizens have to hand over all assets worth more than 3,000 Dkk (€402) in order to receive social services, and so to say that the Danish state “places them on an equal footing with Danish citizens” is frankly ludicrous. Moreover, Danish citizens do not have to hand over anything; they only acquire the right to certain types of social assistance if they do not have real property, such as a house, or over a specific amount of assets that is much higher than 400 Euro. Equating them with Danish citizens would be a completely different story, and would have to involve an extensive review of assets held, worldwide. Were Danish citizens to be treated in this way, there would be mayhem.

    Re: Jakob Cornides, if the point is to ‘ask them to pay for material benefits’, then the proper way of doing this is to hand them the bill, not to randomly take possession of their assets. You can deny them further services if they do not pay, perhaps, but forcing them to use certain services and taking assets as ‘payment’ for them is what is called a ‘shakedown’. In this case, the shakedown is particularly egregious, because the threshold is so low and clearly targeted at people who don’t have much, and who are purportedly in danger if turned away. The tragic irony of this measure is that Denmark is now dissuading asylum seekers who might become consumers or even entrepreneurs because they bring money, and you’re not dissuading, perhaps even attracting more of those who will be all the more dependent on the Danish state because they have nothing.

    This is a nasty piece of legislation that symbolically constructs asylum seekers as profiteering from the international refugee protection regime, and hereby weakens their right to non refoulement. In addition, it clearly discriminates in how property and possessions are protected, by treating asylum seekers radically different from other migrants and from national citizens. It is for a reason that the reaction to this measure around the world has been of shock and dismay. Let us hope that the European human rights machinery corrects this flagrant violation of international human rights and refugee law. After all, the ECHR calls itself ‘Europe’s conscience’.

  3. I disagree strongly with Mr Cornides on the overall position regarding taking of property- without becoming overly legalistic, whether an act involving taking contravenes international law surely depends in part upon such matters as who is doing it and the purpose and manner of the doing. Per Oppenheim’s International Law, 9th edn, vol 1, §407 ‘The rule is clearly established that a state is bound to respect the property of aliens, and that aliens for their part have the right to peaceful enjoyment of their property’ (p912). The editors note that the rule ‘is qualified to an extent which is not wholly clear’ (p912), and then, using the term ‘expropriation’ as subsuming subspecies including confiscation (taking without compensation), note the importance of context: ‘The question [of whether there is expropriation contra international law] cannot be answered in the abstract, but only on the basis of particular circumstances and in the context of particular purposes’ (p917).

    So for instance the State legitimately collects taxes for its own purposes in the interests of its members. Accordingly it may require me to report my income and to file tax returns and payments. That is somewhat different from sweeping up large numbers of people and taking their assets (save wedding rings and similar- presumably the degree of ‘personal’ quality attributed to any particular item of jewellery or property in this context becomes the subject of a body of public law, as does the question of valuation). However what might appear wrong is the arbitrariness of the latter case.

    Whilst it seems undeniable that the subject matter is within the scope of established international law standards, leaving aside the question of whether there is a breach, I can find a small area of common ground with the previous correspondent on the issue of whether confiscation (expropriation) is the right starting point.

    If I am stopped forcibly by a gang and my property is taken, that does involve an expropriation (in my view, and with all respect to the previous correspondent, it would not cease to be an appropriation if the gang then gave me a sandwich, or offered me a chance to join). But the expropriation represents only a part of the picture- the starting point is not its loss but the way I, a human being, have been treated by others. The forced subjection is degrading. If additionally it occurs because of some relevant discrimination- because I am a non-national or non-indigenous to the territory, or an applicant for, dare I say it, asylum- that also seems objectionable. So perhaps the better starting point is articles 7 and 26 ICCPR whether alone or informing interpretation of analogous provisions in ECHR. To start by focussing upon the taking of property is to adopt too low a target. To adopt a historical analogy I would respectfully suggest that reflective people will think an event like Kristallnacht objectionable not just, or even primarily, because of the destruction or theft of property, but rather by reason of the arbitrary treatment of one group of human beings by other human beings.

  4. Pok Yin Stephenson Chow

    I would just like to add that the law is likely discriminatory because of how execution is envisaged. The amendment gives the police the power to search asylum seekers with the aim of confiscating property. I suppose that there is no Danish law that gives the police the power to search a Danish citizen with the aim of confiscating property (cf. to the power to search a subject when he/she is reasonably suspected of carrying a contraband).
    Other than discrimination, one may further argue a potential violation of the right to privacy. A discriminatory search in this context may also be considered an infringement upon the freedom from degrading treatment.

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  6. Jakob Cornides Jakob Cornides

    Mr Fripp is using the term “expropriation” in a very un-legal manner.

    If somebody steals, or robs, your property, it still remains your legal property. You are not expropriated. “Expropriation” is a legal act by which your property rights are transferred to the state.

    Expropriation is not per se a violation of human rights. It can be one if no compensation is given, and if it takes place in a discriminatory way. I don’t see how it is discriminatory to say that aliens who want to get security, shelter, food, and healthcare should make a contribution that corresponds to their available means. You may find this un-generous (and I would tend to agree on that), but please don’t give in to the temptation of framing everything you don’t feel sympathetic with as a human rights violation.

  7. […] to the Aliens Act allowing the police to search and confiscate property of asylum seekers. EJIL: Talk! discusses how the confiscation of assets likely violates several human rights, but notes that […]

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